In Broward County a 27 year old man with no prior record was arrested for armed trafficking in oxycodone. We met with the prosecutors and no charges were filed. The case was dismissed. Here’s how we did it:
FACTS:
The client was stopped for a traffic infraction. The client voluntary disclosed to the officer that he was carrying a firearm and had a carrying concealed permit. This was the correct thing for the client to do. Traffic stops can be dangerous for police officers. We recommend that when stopped by an officer that you stay in the car, roll down the window, and keep you hands on the steering wheel until the officer directs you otherwise. It is important to be polite with police officers. You do not need to give them permission to search your car and you do not need to give them a statement about the case beyond your name and address. However, you should keep your cool and remain polite with them, even if they do not reciprocate.
The client was ordered out of the car and the weapon was secured. Another police officer arrived and began what we viewed as an improper search of the vehicle. A bottle of oxycondone and a bottle of valium was located in the glove box. The client explained that the medicine belonged to his mother. The bottles had the mother’s name on it. Despite the officer calling the client’s mother who verified the information, the client was arrested for armed trafficking and held without bond.
This is a common fact scenario that we often see, and it can be quite frustrating to the client and his family. Most crimes when committed with a firearm become more serious, and usually there is a requirement that the individual be held without a bond. This is what is called a “non-bondable offense.” CLICK HERE to learn more about getting a bond even in a “non bondable offense.”
In our opinion, the officer clearly over reacted by charging the client with trafficking in drugs in a case where the medicine was in a bottle and had a name and a prescription number. Additionally, while it can be a crime to traffic in drugs with a firearm, the client was legally carrying a firearm because he had a CCF permit.
WHAT WE DID TO HELP:
While police officers make arrests in felony cases, only prosecutors can actually file charges with the court. The prosecutors have 40 days to hold someone while they consider what charges to file. The procedure where a prosecutor considers to file charges includes the prosecutor meeting with witnesses and taking sworn testimony. This is called “pre-file screening”.
In about 20% of the cases where we are hired before the charges are filed we ask to meet with the prosecutor during the pre-file screening process. In this case we brought in the client’s mother and her extensive medical records and the prosecutor took a formal statement from her. After considering the facts in the case, the prosecutor declined to file charges and the client was released from jail after about two weeks from the date of the arrest.
DISCUSSION:
Several issues were at play in this case. There was a search of the car that we thought was probably illegal and would have resulted in the evidence being thrown out. However, rather than take a confrontational approach with the prosecution initially, we decided to approach them with what we considered to be very strong information that the client was innocent. Prosecutors have a sworn constitutional duty not to prosecute innocent people. Some prosecutors and some prosecution offices take this duty more seriously than others. All we can do as defense attorneys is offer the information.
If the charges had been filed in this case then beyond moving for a bond on a non-bondable offense (called an “Arthur Hearing”) we would have prepared a motion to suppress the evidence based on the search of the car. We also would have listed the client’s mother as a defense witness, and begun to prepare the case for trial.
Trafficking in drugs is a very serious charge. Phil Reizenstein has extensive experience in defending these charges since as a prosecutor in Dade County in the 1980’s, he was assigned for a few years to the Major Narcotics Trafficking Unit.
Trafficking in drugs in Florida is nothing more than possessing drugs over a certain amount. The defense to a trafficking charge is usually knowledge. To possess something, an individual must know that they have it. In certain cases where clients are stopped in cars that they do not own, we can defend them by showing that there was no evidence to show they knew the drugs were in the car. In this case, the defense would have been a bit different. All crimes require what the law calls “mens rea” or a guilty mind. In this case, the client merely had dropped his mother off at a family members house, and because there were going to be young children in the house, the client’s mother decided to leave the medicine in the car’s glove box. The client was merely driving a car that had his mother’s medicine in it. There was no “mens rea” to commit a crime.
Trafficking in drugs in Florida carries minimum mandatory prison sentences from 3 years in prison to 25 years in prison depending upon the type and amount of drugs recovered.
Not every case is resolved by our law firm as quickly and successfully as this one. But the client was innocent and although he was held in jail for two weeks, the system worked and the prosecution, upon being presented evidence of his innocence, made the correct decision to decline to prosecute.
